Deo v Ascot Motors Proprietory Ltd [2011] FJHC 453; HBC331.2008 (18 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 331 OF 2008

BETWEEN:

RANVEER PRAKASH DEO
Plaintiff

AND:

ASCOT MOTORS PROPRIETORY LIMITED
First Defendant

AND:

COCA-COLA AMATIL (FIJI) LTD
Second Defendant

Mr D Singh for the Plaintiff
Mr V Singh for the Second Defendant

DECISION

This is an application by the Plaintiff seeking leave to appeal a decision of the Master dated 11 March 2011. The application was filed on 24 March 2011 and was supported by an affidavit sworn Hemant Kumar on 23 March 2011. The Second Defendant filed an answering affidavit sworn by Sharon Veu Morris, a litigation executive employed by the legal practitioners acting for the Second Defendant, on 3 June 2011. The Plaintiff filed a reply affidavit sworn by Hemant Kumar on 15 June 2011. Hemant Kumar deposed that he was the Chief Legal Executive in firm of legal practitioners acting for the Plaintiff.

The application for leave to appeal was made pursuant to the requirements stated in Order 59 Rule 8(2) and Rule 11.

Order 59 Rule 8(2) states:

"No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed."

Order 59 Rule 11 states:

"Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment."

The application by summons was filed in accordance with the time limit specified in Rule 11. If I had considered it appropriate I may have considered the application on the material filed by the Plaintiff as applicant. However it was more appropriate to allow the Second Defendant and then the Plaintiff to file further affidavit material.

Even at that stage I may have considered all the material filed. However, in the interests of justice on 28 July 2011 the parties presented legal submissions on the principles to be applied when considering an application for leave to appeal.

The Plaintiff is seeking leave to appeal the decision of the Master delivered on 11 March 2011. The Order was sealed by the Registry and entered on 23 March 2011. The Order in its sealed form states:

"Upon reading the Notice Pursuant to Order 25 Rule 9 of the High Court Rules dated 13 January 2011

And Upon Hearing _ _ _ (both Counsel)

It is this day ordered that the entire action be struck out with no order as to costs."

This decision was apparently delivered ex tempore and there was no written Ruling to indicate the bases upon which the learned Master had reached the decision to strike out the Plaintiff's action.

Rule 9 of Order 25 was introduced by the High Court (Amendment) Rules 2005 and came into effect on 19 September 2005. Rule 9 states:

"(1) If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.

(2) Upon hearing the application the Court may either dismiss the cause or matter on such terms as may be just or deal with the application as if it were a summons for directions."

In this case the Court of its own motion had listed the cause before the Master for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court. The Notice was dated 13 January 2011 and was set down for hearing on 11 March 2011.

It is apparent that before proceeding to make an order striking out the cause, the Master must find that the lack of activity for more than six months constituted grounds for striking out for want of prosecution or grounds for striking out as an abuse of the process of the Court. Having reached that conclusion the Master may then dismiss the cause on just terms. Presumably if the Master is not satisfied that the lack of activity for six months does not constitute want of prosecution or an abuse of process then he may proceed to deal with the application as if it were a summons for directions. The only written record of the proceedings before the Master is five lines in a brief note that refers to some of the submissions made by Counsel. The only indication as to the Master's reasoning is the last note which states "no delay explained."

The action had been commenced by Writ issued out of the Suva Registry on 25 September 2008. It is a personal injuries claim for damages. An Acknowledgment of Service was filed on 20 October 2008 on behalf of the Defendants. The Second Defendant delivered its Defence on 10 November 2008. The Plaintiff filed his Reply on 9 January 2009. In accordance with Order 18 Rule 19 the pleadings were deemed to have closed 14 days after service of the Reply on the Second Defendant.

The sequence of events after that date might not have been in strict compliance with the Rules.

Somewhat prematurely on 9 January 2009 the Plaintiff also filed an affidavit verifying his list of documents. Since the action was a personal injuries action that did not involve an allegation of medical negligence Order 25 Rule 8 provided that certain interlocutory direction automatically came into effect. Rule 8 (a) provides directions in respect of discovery of documents. To the extent that discovery was required in this case it was to be in accordance with Order 24 Rule 2.

Although Order 24 Rule 2 (2) exempts a Defendant from the requirement to discover documents in an action arising out of an accident on land due to a collision involving a vehicle, the claim in this case was in respect of personal injuries suffered by the Plaintiff when a truck door fell on the Plaintiff's leg whilst he was attempting to unload a tarpaulin. Consequently the Second Defendant was required to file and serve an affidavit verifying its list of documents in accordance with Order 25 Rule 8 and Order 24 Rule 2.

By email dated 26 January 2009 the legal practitioners acting for the Plaintiff wrote to the legal practitioners acting for the Second Defendant stating:

"_ _ _

Please be advised that we have filed and served our Reply to Defence and affidavit Verifying List of documents on your office on 15 January 2009.

In the circumstances we would appreciate if you could file and serve your client list of documents within the next 14 days, please.

_ _ _."

Receipt of this email was admitted by the legal practitioners acting for the Second Defendant. On the basis that the Reply was served on 15 January 2009, the pleadings were not deemed to have closed until 29 January 2009. Pursuant to Order 25 Rule 8 the Second Defendant was not required to provide discovery until 14 days after that date, being 12 February 2009.

Having received no response the legal practitioners for the Plaintiff sent a further email dated 5 March 2009 to the Second Defendant's legal practitioners stating:

"We refer to our earlier email sent to you on 26 January 2009 at 12.56pm.

We note that to-date we have neither received any response to our email nor have you filed your client affidavit verifying list of documents.

In the circumstances we would appreciate if you could file the same within the next 7 days failing which we will have no alternative to make an appropriate applications."

On the same day the legal practitioners replied by email stating:

"My apologies Mr Razza. Will get onto it."

By email dated 17 March 2009 the Second Defendant's legal practitioners informed the Plaintiff's legal practitioners:

"Mr Razza

My apologies for the late reply.

We do not have any documents to disclose on this matter. Please take the required next step to move this matter forward."

The Plaintiff denied receipt of these emails. However it is not disputed that the Plaintiff's legal practitioner wrote a letter dated 29 April 2009 to be legal practitions for the Second Defendant stating:

"_ _ _

Enclosed herewith please find all the documents enumerated in out client's list of documents, which are as follows:

(1 – 8 _ _ _)

Please be further advised that we also enclose a proposed Minutes of Pre-Trial Conference for your comments for amendments (if any).

Your earliest attention in this matter will be highly appreciated."

It was not disputed that the Second Defendant did not reply to that letter and did not return the proposed Minutes. Certainly there was no strict obligation to comply with the written request made by the Plaintiff to amend and/or sign the proposed Minutes. Order 34 Rule 2 does pre-suppose that a conference between the legal practitioners acting for the parties has taken place and that at the conclusion of such conference minutes of any agreement are signed.

However, in my judgment, as a matter of professional courtesy if nothing else, the legal practitioners for the Second Defendant should have indicated that the course of action adopted by the Plaintiff was not in accordance with Order 34 Rule 2. No doubt the Plaintiff would then have proceeded to arrange the conference as required by Order 34. It must also be said that when it became apparent that the Second Defendant had not signed and returned the proposed Minutes the Plaintiff should have either arranged a conference or taken proceedings to compel compliance with Order 34. It appears then that neither side did anything further until the Court served the Notice under Order 25 Rule 9.

There were various explanations put forward by the Plaintiff for this lack of activity between 29 April 2009 and 13 January 2011 which need not be considered in any detail at this stage.

Although there is no draft Notice or grounds of appeal annexed to the supporting affidavit, the Plaintiff has indicated in paragraph 16 that it wishes to appeal against the said decision of the Master on the following grounds:

"(i) That the Learned Master failed to consider and/or state the reasons for the delay caused in this action.

(ii) That the Learned Master failed to take into account the delay was caused as a result of the Solicitors for the 2nd Defendant.

(iii) That the Learned Master failed to take into account the facts of the case, the nature of the claim and the prejudice caused to the Plaintiff in striking out the action."

One of the matters that is relevant in any application such as the present relates to the merits of the proposed appeal. In that regard the absence of written reasons for the rather draconian step of striking out a Plaintiff's action is of particular significance. As the Court of Appeal in Trade Air Engineering (West) Limited and Others –v- Laisa Taga and Others (unreported civil appeal No. 62 of 2006 delivered 9 March 2007) stated at page 6:

"The failure to provide reasons for the decision reached in March was, with respect, unsatisfactory."

Perhaps more significantly on page 7 of the same decision (supra) the Court of Appeal said:

"In our view the only fresh power given to the High Court under Order 25 Rule 9 is the power to strike out or to give directions of its own motion. While this power may very valuably be employed to agitate sluggish litigation it does not in our opinion confer any additional or wider jurisdiction on the Court to dismiss or strike out on grounds which differ from those already established by past authority."

The only other matter that the Master appeared to have considered was a note to the effect that "no intention to proceed filed."

This no doubt was a reference to Order 3 Rule 5. I do not consider that this observation adds a great deal to the principal issue of the delay between April 2009 and January 2011. Even if a notice under Order 3 Rule 5 had been filed and served it would have made no difference to the issue of delay unless the Plaintiff had taken a further step in the action. As Coventry J noted in NBF Asset Management Bank -v- Adi Sainimili Tuivanuavou (unreported civil action No.174 of 2000 delivered 8 March 2006) at page 10:

"In my judgment the issuing of a Notice of Intention to Proceed is not a step in a proceeding in any cause or matter. It does not progress the cause or matter. It does not progress the cause or matter in any way. It merely gives notice that, that which was not progressing will be progressed a month after service of the Notice".

In my judgment the Plaintiff has sufficient prospects of succeeding on the appeal that leave should be granted for the appeal to proceed. In arriving at that conclusion I have considered the decision of the Court of Appeal in Hussein –v- Pacific Forum Line Ltd (unrepresented civil appeal No.24 of 2000 delivered on 30 May 2003). In that decision the Court applied the principles discussed by the House of Lords in Grovit and Others –v- Doctor and Others [1997] UKHL 13; [1997] 2 All ER 417. In that decision the House of Lords adopted (at page 419) the approach of Lord Diplock in Brikett –v- James [1977] 2 All ER 801 at 805:

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the Court, or (2) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Defendants either as between themselves and the Plaintiff or between each other or between them and a third party."

Furthermore apart from inordinate and inexcusable delay and any prejudice caused to the Defendant, it is also necessary to stand back and have regard to the interests of justice. In my judgment the delay between April 2009 and January 2011 does not indicate that the Plaintiff will not succeed in his appeal against the Master's decision.

The application is granted. The Appellant is granted leave to appeal the Master's decision. The costs of this application are to be costs in the appeal.

W D Calanchini
JUDGE

18 August 2011
At Suva